STATE OF TAMIL NADUversusT.V. VENUGOPALAN

                        STATE OF TAMIL NADU                                     A
                                  v.
                         T.V. VENUGOPALAN

                             AUGUST 3, 1994

         [K. RAMASWAMY AND N. VENKATACHALA, JJ.]                                B

      Service Law-Correctio11 of date of birth.

       Tamil Nadu State and Subordinate Services Rules 1961 : Rules 49 and
49A-Application for correction of the date of birth to be made within 5 years
from the date when the mies had come into force i.e. 1961-11ie employee
                                                                                c
looses his nght to make an applican·on for the inordinate delay in making the
applicatiorr-11ie delay itself is a ground for rejecting the application for
correction of date of birth.

      The respondent entered into service of the State Government in 1952.      D
His date of birth was recorded as August 15, 1933 according to the proce-
dure in vogue at that time namely as per the declaration of father. The
respondent was due to retire on August 31, 1991. On August 14, 1990 he
made a representation stating that his father had inadvertently stated his
date of birth as August 15, 1933. His request for correction Wlls rejected by
the GovernmenL He filed an application in the Administrative Tribunal           E
which allowed his application and directed the extension of respondent's
service by 2 years. The State P.referred the present appeal.

      It was contended for the respondent that the Tribunal bad ap-
preciated the evidence and bad found the reasons given for rejection as
unsound. It was further contended that the limitation of 5 years were
                                                                                F
prescribed in 1961 and as be bad entered the service earlier, it was not
applicable in his case.

      Allowing the appeal the, Supreme Court

      HELD : 1. Rule 49 of the Tamil Nadu State and Subordinate Services G
Rules 1961 is to be harmoniously interpreted. The application for correc-
tion of date of birth of an inservlce employee should be made within live
years from the date when the Rules had come into force, i.e. 1961. If no
application is made, after expiry of five years, the government employee
loses his right to make an application for correction of his date of birth. It H
                                    411
    412                   SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

A is seen that the respondent entered into the service on January 12, 1952,
    and only when he was due for superannuation at the age of 58 years on
    August 31, 1991, he made the application exactly one year before his super-
    annuation. The government rejected his claim before he attained the age of
    superannuation on August 30, 1991. When questioned, the Tribunal, for
    incorrect reasons, ~et aside the order and remitted the matter for recon·
B   sideration. The goverrament considered various facts and circumstances in
    the G.O. Ms. No. 271 and rejected the claim on March 31, 1993. [417-C, DJ

           2.1 The evidence is not unimpeachable or irrefutable. The Tribunal
    in its judicial review is not justified in trenching into the field of apprecia-
C   lion of evidence and circumstances in its evaluation to reach a conclusion
    on merits as it is not a court of appeal. This Court has, repeatedly, been
    holding that the inordinate delay in making the application is itself a
    ground for rejecting the correction of date of birth. The government
    servant having declared that his date of birth as entered in the service
    register to be correct, would not be permitted at the fag-end of his service
D   career to raise a dispute as regards the correctness of the entries in the
    service register. It is common phenomena that just before superannuation,
    an application would be made to the Tribunal or Court just to gain time
    to continue in service and the Tribunal or Courts are unfortunately unduly
    liberal in entertaining and allowing the government employees or public
E   employees to remain in office, which is ading an impetus to resort tt•..the
    fabrication of the record and place reliance thereon and seek the authority
    to correct it. When rejected, on grounds of technicalities, question them
    and remain in office till the period claimed for, gets expired. This case is
    one such stark instance. [417-E to H, 418-A)

F
          2.2. The Tribunal has grossly erred in showing over- indulgence iri
    granting the reliefs even trenching beyond its powers of allowing the
    respondent to remain in office for two years after his date of superannua-
    tion even as per his own case and given all conceivable directions beneficial
    to the employee. It is, therefore, a case of the grossest error of law
G   committed by the Tribunal which cannot be countenanced and cannot be
    sustained on any ground. [418-B)

          Union of India v. Hamam Singh, [1993) 2 SCC 162, relied upon and
    Director of Technical Education v. K Sita Devi, [1991] SC 308; distin-
H   guished.
             STATE v. VENUGOPALAN [K. RAMASWAMY, J.J                      413

       Executive Engineer v. Rangdhar Malik, [1993] Supp. 1 763 and A
Secretal)• and Commissioner Home Depanment v. R. Kimpakaran, [1993] JT
5 SC 404, referred to.

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5422 of
1994.
                                                                                 B
    From the Judgment and Order dated 1.9.93 of the Tamil Nadu
Administrative Tribunal, Madras in 0.A. No. 1993 of 1993.

        A. Mariarputham and Mrs. Aruna Mathur for the Appellant.

     K.V.S. Raghavan, A Ranganadhan and A.V. Rangam for the                      C
Respondent.

        The Judgment of the Court was delivered by

        K. RAMASWAMY, J. Leave granted.
                                                                                 D
       The respondent had entered into the service as a Probationary
Deputy Surveyor in Revenue Department of Madras Province on January
12, 1952. In his service record, his date of birth, as recorded in his
Secondary School Leaving Certificate was August 15, 1933. His SSLC Book
contained a declaration of his father, as was the procedure in vogue, that
the respondent's date of birth was August 15, 1933. While the respondent         E
was working as an Assistant Director of Survey and Land Records, he was
due to retire on attaining the age of superannuation of 58 years on August
31, 1991. On August 14, 1990, i.e. an year before retirement he made a
representation to the Government, the appelant, stating, inter alia, that his
father had inadvertently recorded his date of birth as August 15, 1933 in        F
the school register but, in fact, his actual date of birth was August 15, 1935
and sought for its alteration enclosing certain birth certificates claiming to
be of his sister's, brother's and of himself. The Government after examining
his case rejected his request by letter dated August 30, 1991. On an
application filed in the Administrative Tribunal, he contended that before       G
rejecting the application, he was not provided with an opportunity of
hearing, nor the order contained any reasons, which is in violation of the
principles of natural justice. The Tribunal in the order dated December 1,
1992 while setting aside the order, directed the Gover11111ent to dispose of
respondent's representation by giving reasons and an opportunity of hear-
ing. The Government after complying with the dkection and consideration          H
    414                   SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A of the case again rejected the claim by its G.O.Ms. No. 271 dated March
    31, 1993. The respondent challenged that order by filing O.A. No. 1993 of
    1993 and the Tribunal by the impugned order dated September 1, 1993
    again allowed the petition and directed to extend respondent's service by
    two years which would be counted from the date of his joining duty since
    the respondent was superannuated on August 31, 1991. The intervening
B
    period was directed to be dealt with in such a manner as not to constitute
    a break in service as it would affect his service benefits. It aslo held that
    the respondent is eEgible to draw his provident fund and other superan-
    nuation benefit~ like gratuity, special provident fund and Family Benefit
    Fund and commutation of pension only after his superannuation in terms
C   of the Tribunal's order and that if the respondent had already drawn these
    amounts, the State would be entitled to deduct interest at the rate of one
    per cent per month at the end of the extended tenure from the amounts
    due and payable to him.


D          The learned senior counsel for the respondent, Mr. KVS Raghavan,
     contended that the Tribunal had appreciated the evidence and held that
     the reasons given by the Government to reject the claim of the respondent
    for correction of his date of birth, are unsound. The discrepancies pointed
    out by the Government were not on material particulars and of no conse-
E   quence and they were minor discrepancies regarding names of the parents,
    addresses, etc. They do not cast doubt on the registration of respondent's
    date of birth. Since the Tribunal had appreciated the evidence-and found
    the date of birth to be August 15, 1935, the case does not warrant inter-
    ference. Placing reliance on the letter dated August 21, 1990 issued by the
    Government intimating the Departments that Rule 49 of the Tamil Nadu
F   State and Subordinate Services Rules (in short 'Rules') were prospectively
    introduced in the year 1961 prescribing a limitation of five years for seeking
    correction of the date of birth after entering into the service and applica-
    tions made thereafter shall be summarily rejected, amounts to conceding
    that the respondent had no prior opportunity to have it corrected. In the
G   light of the directions issued by the Administrative Tribunal, in an earlier
    case, government conceded and permitted the authorities to have the date
    of birth corrected within five years from the date. Since the respondent had
    already applied for correction of the date of birth, the authorities are
    bound to go into the question and the limitation of five years would not be
H   a bar. We find no force in any of the contentions.
           STATE OF v. VENUGOPALAN[K.RAMASWAMY,J.)                         415

        Rule 49 and 49-A of the Rules provide the procedure and limitation A
for seeking correction of the date of birth by the government employees.
Rule 49(b) provides that after a person has entered io service, an applica-·
tion to alter his date of birth, as entered io the official records, "shall be
entertaioed only if such an application is made withio five years after
enteriog in service ............. ". If any such application has been made earlier B
or before the expirty of five years from the date of the entry into the service,
it is iocumbent upon the authorities to enquire into the claim for correction
of the date of birth mentioned in the service record and to pass appropriate
order io that behalf. It is true that a government servant has a right to seek
correction of the date of birth as entered io the service record by placiog C
unimpeachable evidence before the competent authority and the authority
is enjoined to enquire ioto and pass appropriate orders io that behalf, but
it must be io accordance with the rules and io the manner prescribed
thereio. It is \Veil- known that the service record would be opened after the
government servant enters the service and normally the entry io the service
record would be counter-signed by the government servant. The date of D
birth as entered in the school record (Matriculation, Secondary School
Leaving Certificate or H.S.C. or Board, Exafils, whatever may be the name
of the certificate from an institution io wlllch the candidate had undergone
course of study, be it io the primary or secondary educational iostitutions),
is the source material for making entry io the service record. The object of E
the Rule or statutory iostructions issued under proviso to Article 309 or
orders issued by the government under Article 162, for the correction of
the date of birth entered io the service record, is that the government
employee, if he has any grievance ill respect of any error of entry of date
of birth, will have an opportunity, at the earliest, to have it corrected. Its F
object also is that correction of the date of birth beyond a reasonable time
should not be encouraged. Permission to reopen accepted date of birth of
an employee, especially on the eve or shortly before the superannuation of
the government employee, would be an impetus to produce fabricated
record. The Government of Andhra Pradesh made statutory rules, namely,
A.P. Public Employment (Recording and Alteration of Date of Birth) G
Rules, 1984 and had given time to have the date of birth corrected within
the stipulated period and on expiry thereof, the civil court was prohibited
to entertaio any suit or proceedings for correction of the date of brith.
When an application was made to the Administrative Tribunal for correc-
tion of the date of birth based on entries maiotaioed under Births, Deaths H
    416                   SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A and Marriages Registration Act, 1886, the Tribunal allowed the petition.
    On appea~ this Court in Government of Andhra Pradesh v. M Hayagreev
    Sanna, held that "The object underlying Rule 4 is to avoid repeated
    applications by a government employee for the correction of his date of
    birth and with that end in view it provided that a government servant,
    whose date of birth may have been recorded in the service register in
B   accordance with the rules applicable to him and if that entry had become
    fmal under the rules prior to the commencement of 1984 Rules, he will not
    be entitled for alteration of his date of birth." 'Fhe appeal was allowed and
    alteration of date of birth was set aside."

C          In Union of India v. Hamam Singh, [1993] 2 SCC 162, when Fun-
    damental Rule 56(m) was amended and substituted Note 5 in 1979
    prescribing a period of five years to seek alteration of the date of birth
    from the date of coming into force of these rules, this Court harmoniously
    interpreted the Rule and held that the employee who was in service as on
    that date, will be entitled to seek correction of date of birth within five
D   years from 1979. In that context, this Court held that "A Government
    servant who had declared his age at the initial stage of the employment is,
    of course, not precluded from making a request for correcting bis age. It
    is open to a Civil Servant to claim correction of his date of birth, if he is
    in possession of irrefutable proof relating to his date of birth as different
E   from the one earlier recorded; should make application within a period of
    five years from the date of the Rule had come into force and if he had not
    done, he was not eligible and was not entitled to correction. In that case,
    in view of the inordinate delay, the application for correction of date of
    birth was rejected.

F          In Executive Engineer v. Rangadhar Malik, (1993] Suppl. 1 SCC 763,
    interpreting Rule 65 of the Orissa General Finance Rules, when an applica-
    tion of date of birth was made nearabout the time of superannuation, this
    Court held that it shall not be corrected. In Secretary & Ccmmissioner
    Home Department v. R Kirubakaran, JT (1993) 5 SC 404, arising from the
G   Tamil Nadu State and Subordinate Rules, this Court while noticing the
    inordinate delay in filing the application for correction of the date of birth,
    set aside the ord1>r of the Tribunal. Director of Technical Education v. K
    Sitadev~ AIR (1991) SC 308 relied on by the respondent, renders little
    assistance to the facts in this case. The respondent in that case filed a civil
    suit for corretion of date of birth without impleading the government      ana
H   got suit decreed. While upholding that the State being not a party to the
                                                                                      .   '
            STATE v. VENUGOPALAN [K. RAMASW.\MY, J.]                   417

suit, the decree did not bind the government, since the evidence of the A
Municipal Birth Register was not objected by the State when it was
produced before the Tribunal, the acceptance thereof by the Tribunal was
found by this Court, cannot be faulted. In that factual background, this
Court upheld the order of the Tiibunal directing correction of date of birth
of the respondent therein.
                                                                             B
       As held by this Court inHamam's case, Rule 49 is to be harmonious-
ly interpreted. The application for correction of the date of birth of an
inservice employee should be made within five years from the date when
the Rules had come into force, i.e. 1961. If no application is made, after
expiry of five years, the government employees loses his right to make an C
application for correction of his date of birth. It is seen that the respondent
entered into the service on January 12, 1952, and only when he was due to
superannuation of 58 years on August 31, 1991, he made the application
exactly one year before his superannuation. The government rejected his
claim before he attained the age of superannuation on August 30, 1991. D
When questioned, the Tribunal, for incorrect reasons, set aside the order
and ·remitted the matter for reconsideration. The government considered
various facts and circumstances in the G.O.Ms. No. 271 and rejected the
claim on March 31, 1993. The evidecne is not unimpeachable or irrefutable.
The Tribunal in its judicial review is not justified in trenching into the field E
of appreciation of evidence and circumstances in its evaluation to reach a
conclusion on merits as it is not a court of appeal. This Court has,
repeatedly, been holding that the inordinate delay in making the applica-
tion is itself a ground for rejecting the correction of date of birth. The
Government servant having declared that his date of birth as entered ·in F
the service register to be correct, w0uld not be permitted at the fag-end of
his service career to raise a dispute as regards the correctness of the entries
in the service register. It is common phenomena that just before superan-
nuation, an application would be made to the Tribunal or Court just to
gain time to continue in service and the Tribunal or Courts are unfor-
tunately unduly liberal in entertaining· and allowing the government G
employees or public employees to remain in office, which is adding an
impetus to resort to the fabrication of the record and place reliance
thereon and seek the authority to correct it. When rejected, on grounds of
technicalities, question them and remain in office till the period claimed
for, get expired.· This case is one such stark instance. Accordingly, in our H .
    418                  SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A view, the Tribunal has grossly erred in showing over- indulgence in granting
    the reliefs even trenching beyond its powers of allowing him to remain in
    office for two years after his date of superannuation even as per his own
    case and given all conceivable directions beneficial to the employee. It is,
    therefore, a case of the grossest error of law committed by the Tribunal
H   which cannot be countenanced and cannot be sustained on any ground.
    The appeal is accordingly allowed with costs quantified as Rs. 3,000.

    A.G.                                                       Appeal allowed.
           , I